digital music and the music business

Kanye "Bound 2" Lawsuit Is Really About Right of Publicity, Not Copyright Infringement

By John Miranda, a Chicago-area Lawyer and Consultant, of Feliz Media.

The recent lawsuit filed against Kanye West has sparked a lot of talk about the importance of diligent sample clearance. True, it is always wise to clear samples. But this lawsuit does not focus on copyright infringement,* which is the primary concern of the sample clearance process. Instead, the cause of action is rooted in a legal right known as "Right of Publicity."

Kanye's "Bound 2" features a highly recognizable sample of "Bound" by the Ponderosa Twins Plus One. Ricky Spicer, who spent much of his youth as the lead singer of the Ponderosa Twins Plus One, has sued Kanye West (and four affiliated labels) for violating Spicer's Right of Publicity by sampling his voice without permission. In the complaint, which was filed in the New York Supreme Court (which has original jurisdiction over Right of Publicity cases pursuant to statute), Spicer's lawyers cite New York Civil Rights Law §51, which explicitly prohibits the use of a person's voice for commercial purposes unless express written consent has been obtained (here is a link to the complaint in .pdf form, which quotes the applicable statutory language - courtesy of the Hollywood Reporter).

The threat of Right of Publicity lawsuits for voice misappropriation could complicate the hip-hop sample clearance process, which is already wrought with complications. Traditionally, artists and producers using samples seek licenses from the sound recording and composition copyright owners (record labels and publishers). Since the four labels named as defendants in the suit (UMG, Roc-A-Fella, Island Def Jam, & Rhino) all have access to well-funded, Harvard-staffed legal departments, the benefit of the doubt suggests that they competently procured and paid for all the necessary licenses to use the sample of "Bound." However, a Right of Publicity release for a singer's voice has never been part of the sample clearance checklist, even for high-profile releases such as "Bound 2."

Although the Right of Publicity has long been a staple of American law, it has typically concerned the unauthorized use of names, images, and likenesses, rather than voice recordings. For example, Marilyn Monroe's estate receives royalties from licensing the right to use her image and likeness on consumer products all over the world. Regardless, this lawsuit is a warning siren to the hip-hop community that samples including an individual's voice may warrant an extra step - that is, obtaining a release (and possibly a licensing fee arrangement) from any performers whose voices appear in a sampled recording. Unfortunately for artists, labels, and producers with modest budgets, this means another legal and financial impediment to the innovative use of samples.

* At the end of the complaint, there does happen to be a briefly worded claim of copyright infringement. Spicer's lawyers claim that Spicer retains a "common law" copyright, since there was no federal sound recording copyright before 1972 (though the composition copyright has been part of our legal regime since the nineteenth century). "Common law" refers to law written by judges via court precedent, and they are presumably referring to New York state law, though they cite no New York cases or statutes in this claim (right of publicity is the focal point of Spicer's suit; this is just an afterthought). The biggest New York common law copyright case was heard by the New York Court of Appeals (Capitol Records, Inc. v. Naxos of America, Inc., 4 N.Y.3d 540 (2005)), which does not bind the New York Supreme Court, so who knows how that issue will play out.

John Miranda is a Chicago-area Lawyer and Consultant. He can be reached at jmiranda988@gmail.com. For more information about the sample clearance process, please read his recent article on Fake Shore Drive.

Comments

You can follow this conversation by subscribing to the comment feed for this post.

I may be mistaken, but isn't the New York Court of Appeals the highest court in NY - and therefore its decisions are in fact binding on the Supreme Court (the court of general jurisdiction, similar to a superior court in other states)?